A
local planning commissioner’s authorship of an article criticizing a project
that the commission was considering at the time establishes a probability of
bias requiring that the subsequent rejection of the project be reconsidered,
this district’s Court of Appeal ruled yesterday.

Div.
Three, in an opinion by Presiding Justice Joan Dempsey Klein, said Tony
Lucente, a member of the City of Los Angeles’ South Valley Area Planning
Commission should have recused himself from consideration of Nasha, L.L.C.’s
proposal to develop large single family homes on five lots north of Mulholland
Highway and east of Laurel Canyon.

Nasha
has the right to an unbiased commission ruling on the project, Klein said, and
was deprived of that right when Lucente participated in the decision after
writing an unsigned attack on the project that was published in the Studio City
Residents Association newsletter and discussing the project privately with one
of the citizens opposing it.

Planning
commissioners, the presiding justice explained, are quasi-judicial
decisionmakers who must avoid even the reasonable appearance of bias.

Conservancy
Objects

Critics
of Nasha’s Multiview Drive project—which would place five three-story single
family homes measuring between 5,000 and 7,000 square feet, plus outdoor
swimming pools, on lots of between 22,000 and 47,000 square feet—include the
Santa Monica Mountains Conservancy and several neighborhood residents. Those
critics say the project endangers wildlife in violation of the Mulholland
Scenic Parkway Specific Plan, and that its design is incompatible with the Mulholland
Parkway environment.

The
project received an adverse recommendation from the Mulholland Design Review
Board, but was approved by the city planning director in March 2001. The
conservancy, among others, appealed the approval to the commission.

The
newsletter article, published in June 2001, describes the project site as “an
absolutely crucial habitat corridor.”

Lucente,
who was president of the residents association at the time, acknowledged at the
time of the commission hearing that the article had appeared in the newsletter,
saying the association had “included information...at the request of one of our
members.”

He
did not disclose his authorship prior to his deposition being taken in the
developer’s writ proceeding, and said—inaccurately, Klein concluded—that he had
not been in direct contact with the appellants.

At
the conclusion of the hearing, Lucente moved to reject the project, which the
commission did on a three to one vote.

After
the commission denied reconsideration, based on the allegation of bias by
Lucente, and issued its findings, Nasha petitioned the Los Angeles Superior
Court for a writ of mandate. Judge David Yaffe denied the writ on the grounds
that Nasha should have raised the bias issue at an earlier stage of the
proceedings, and that the project was incompatible with the surrounding area.

But
Klein, writing for the Court of Appeal, said the developer had “shown an
unacceptable probability of actual bias” on the part of Lucente and that
Yaffe’s findings regarding the timeliness of Nasha’s objections to Lucente’s
participation were “erroneous, both factually and legally.”

Request
to Reconsider

Nasha,
the presiding justice noted, raised the issue in a request for reconsideration
one week after the commission meeting at which Lucente failed to disclose his
authorship of the article. Klein also rejected the city’s challenge to the
consideration of Lucente’s deposition testimony, saying the usual rule limiting
administrative mandate proceedings to review of the record is subject to an
exception allowing extrinsic evidence on the issue of procedural fairness.

In
a footnote, Klein pointed out that because the city’s charter requires three
votes of the area planning commission to overrule the planning director,
Lucente’s vote was crucial to the project’s rejection.

The
presiding justice declined to address the merits of the commission’s decision,
saying the taint created by Lucente’s participation necessitates that the
matter be reheard “by an impartial panel.”

Attorneys
on appeal were Robert L. Glushon of Luna & Glushon for the developer and
Assistant City Attorney Jeri L. Burge and Deputy City Attorney Steven N. Blau
for the city.